Thursday, March 16, 2017

Bail, Revisited

State v. Bailey, 2017 VT 18

By Elizabeth Kruska

William Bailey is accused of manslaughter of his buddy, Daniel Hein. The facts, essentially, is that Bailey, Hein, and a couple other friends were out driving around the greater Rutland County, Vermont/Washington County, New York area (this appears to take place  all within the span of a few miles, albeit across state lines), and generally causing trouble. They broke into a farm stand to steal money to buy alcohol and then they were going to go break into another farm stand. They were smoking pot, too. So, not awesome decision making, but so far not inconsistent with being young and looking for something to do, where “something to do” includes burglary.

Somewhere along the way the crew went to a house to get a gun. A gun they had previously stolen. One of the kids came out with a gun, but it had no magazine inserted. There was some discussion about whether the gun was loaded or not. Daniel Hein challenged Bailey, and said something along the lines of, “if it isn’t loaded, pull the trigger.”

So he did. And it was loaded. And this story went from “string of farm stand burglaries” to homicide very quickly.

In a somewhat surprising move (surprising to me, at least, as a criminal defense lawyer), the State didn’t seek to have Bailey held without bail. Bailey was initially held on $50,000 bail. Bailey had a bail review hearing about 10 days after his initial hearing, and the bail was reduced to $25,000. He appeals, both the bail amount, and the fact that the court did not find either his dad or his girlfriend to be appropriate people to whom he could be released. SCOV affirms.

As we’ve said before, the point of bail is to ensure a defendant’s appearance in court for future hearings. The court can also impose conditions of release to help ensure that appearance. The court figures out what’s necessary by balancing lots of factors including the nature of the offense, the number off offenses charged, the defendant’s prior history, and his or her ties to the community. The court can also consider the defendant’s mental condition, and also recent history of actual violence or threats of violence.

When factoring all that together, the court can order what it feels to be an appropriate amount of bail and set of conditions of release to ensure that the defendant shows up. The court can order that a defendant adhere to a curfew, live in a certain place, or be released to a specific responsible adult, among other conditions. Whatever the court imposes must be the least restrictive to ensure appearance in the future.

Given the seriousness of the case and other factors, the court set bail at $25,000, and also required that if bail was posted, that Bailey had to be in the custody of a responsible adult. Bailey proposed his dad or his girlfriend to be the custodian.

The trial court took testimony and heard from Bailey’s dad. It’s not clear if the girlfriend also testified, but the court did receive some information about her. The dad said he was willing to get a loan against his house, which had sufficient equity, to pay the bail. The court found it persuasive that with the dad’s house on the line, that Bailey would show up.

The court also found that Bailey’s dad lived in Granville, New York. A couple things about this. First, New York is a different state from Vermont (a shocking revelation, I know), and if Bailey lived there it would make monitoring his conditions of release difficult. Second, Bailey didn’t really have any community ties in Vermont. Although Granville is literally just over the border and may feel like part of the same community in the larger sense of the word, the state line matters.

The court found that the offense here was really serious – Bailey killed Hein. The more serious the offense, the more likely it is the defendant won’t show up. Thus, the court wanted to ramp up the conditions of release by requiring that Bailey be released into someone’s custody. Unfortunately, the court found that the two people Bailey proposed, were unacceptable. First, although the dad was willing to put up money from his house, he was a little hedgy about his own criminal record. Since he came across as less than forthcoming, the court had concerns that he’d ensure Bailey’s appearance.

The court was also concerned about Bailey’s girlfriend as a choice of supervisor. She is young, and there was information about Bailey having smashed her television and Xbox some time not long before that.


Bailey appealed, and SCOV upheld the trial court’s findings on the bail and the rejection of the two proposed responsible adult supervisors. SCOV reviews bail proceedings for abuse of discretion. On both issues – the amount of the bail and the supervisors, SCOV found that the trial court received evidence and made appropriate findings based on that evidence. Thus, there was no abuse of discretion by the trial court.

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